updated 4/16/2012 2:56:50 PM ET 2012-04-16T18:56:50

Guest Host: Michael Smerconish
Guests: Howard Fineman, Brian Sullivan, Kerry Sanders,
Michael Steele, Joan Walsh, Chip Saltsman, Steve McMahon, Alan Dershowitz, Chris Frates


Let`s play some HARDBALL.

Good evening. I`m Michael Smerconish in New York, sitting in for
Chris Matthews.

What do women want? Not Mitt Romney, at least according to the gender
gap seen in many polls, and things only seemed to get worse yesterday as
the Romney campaign peddled specious statistics and stumbled on the subject
of equal pay.

Then just as the Democrats were ready to celebrate a successful day,
one of their own stepped on their message with an ill-conceived shot at Ann
Romney. Ann Romney fired back today, and now President Obama has weighed

Also, a rare point of agreement between conservative Republicans and
the Obama campaign. Neither intends to let Mitt Romney tack back to the
center. The right wants him to prove that he meant all of those, quote,
"severely conservative" things that he said during the campaign, and
Democrats won`t let him get -- let swing voters forget it.

Plus, the Trayvon Martin case. We got our first glimpse of George
Zimmerman when he appeared in court today. Harvard law professor Alan
Dershowitz joins us tonight to break down the case.

And calling Joe McCarthy. Republican Allen West of Florida says that
about 80 Democrats in the House are communists. Communists! The
Republican Party spent much of the 1950s in the fever swamps of
McCarthyism. Do they really want to go there again?

And "Let Me Finish" tonight with why the Republican Party`s
presidential prospects may be in even worse shape four years from now.

We begin with the battle for women`s votes. Michael Steele was
chairman of the Republican Party. Joan Walsh is editor of Salon. And both
are MSNBC analysts.

Let`s first take a look at the comments that were made by Democratic
activist Hilary Rosen on CNN last night that kicked off this controversy.


running around the country saying, Well, you know, my wife tells me that
what women really care about are economic issues, and, When I listen to my
wife, that`s what I`m hearing.

Guess what? His wife has actually never worked a day in her life.
She`s never really dealt with the kinds of economic issues that a majority
of the women in this country are facing in terms of how do we feed our
kids, how do we send them to school and how do we worry -- why we worry
about their future.


SMERCONISH: Today, Rosen apologized for what she called her poorly
chosen words, but on Twitter and TV, she defended the premise of her

Here`s what she posted on her Twitter account last night. "When I
said that Ann Romney never worked, I meant she never had to care for her
kids and earn a paycheck, like most American women."

Joining me now, Michael Steele and also Joan Walsh. Let`s parse this
statement. Can we begin that way? Michael Steele...


SMERCONISH: ... his wife has actually never worked a day in her life,
she said. I mean, that was an atrocious thing to say. I think we can all
agree on that. She raised five boys. She`s worked plenty of days in her

STEELE: Thank you.

SMERCONISH: But she then goes on to further explain what she was
meaning. And I guess my question is, does her terrible wording mask any
kind of a legitimate argument about a lack of empathy?

STEELE: No. There`s not a legitimate argument there, in my view.
Just because I have, according to her, never worked a day in my life
doesn`t mean I have empathy for my mom, who had to work or my sister, who
may be working, or an aunt or a dear friend of mine, who has to -- to --
you know, has made the choice to go into the workforce, as well as raise
her kids at home, as well as do whatever else she`s doing.

You know, this sort of elite attitude, particularly about conservative
women and this presumption that they`re somehow disconnected or disjointed
from the rest of America because of their wealth or their station is just

I mean, you`ve never -- she`s never walked a day in Ann`s shoes. She
doesn`t know what her life has been like. She doesn`t know trouble she had
at home raising those five kids that, you know, regardless of whether she
had a job in the workforce, were real challenges for her. You just don`t
make these presumptions.

And you know, if a conservative had made that same call, you know, the
outcry and the hue and cry would have been -- would have been deafening
because it`s arrogant and it`s insensitive.

Look, let her make her -- tell her own story the way she wants to tell
it. The American people will judge for themselves whether there`s value.
You just don`t need people pontificating on how people have lived their

SMERCONISH: Joan Walsh, is there a legitimate issue to be debated

I mean, look, feminists learned about 20 years ago that this is a dumb
argument. Every mother is a working mother. Let`s just say that, OK?
Michael, we know that. Being a mom, whether you stay at home or whether
you work is very...

STEELE: You don`t need to tell me!

WALSH: ... is very hard.

STEELE: Tell -- tell Hilary! Don`t tell me!

WALSH: Wait!

STEELE: I know that!

WALSH: Wait!

STEELE: I have a working mom.

WALSH: Wait. I`m talking -- actually, I`m talking to Michael
Smerconish, Michael...

SMERCONISH: Go ahead, Joan.


SMERCONISH: ... finish your point.

WALSH: Please. For God`s sake! But however, you know, the real
issue here is that Mitt Romney -- what we`re forgetting, is that Mitt
Romney, in that lordly way he has, said, My wife reports to me that women
say this and women care about the economy.

It`s Mitt Romney`s foot-in-mouth disease that brought us to this
position, and that is what Hilary Rosen was talking about, that he uses his
wife as this everywoman who reports to him, like what, he`s the CEO and
he`s deferred the women question to her?

I have advice for Mitt Romney. I`m not a Romney campaign adviser.
Don`t talk about your wife as your campaign surrogate or your adviser on
women. Talk about the experiences of women -- as Michael Steele says, men
can have empathy. Men can learn about what matters to women.

SMERCONISH: Michael Steele, will you...

WALSH: That`s the point she was trying to make.

SMERCONISH: ... accept that? Will you accept that, that Governor
Romney put this in play by identifying his wife as sort of the way in which
he gets insight into female voters?

STEELE: No, I don`t! I mean, he`s relating...


STEELE: ... personal conversations. I mean, you know, she`s not a
paid, you know, staffer. I mean, he was -- like every candidate who`s ever
run for whatever office, has made that connection with voters, with family
members, and say, yes, I -- you know, I listen to what my wife tells me.
Or you know, Newt talks about his grandkids. Or even, you know, President
Obama talks about his children. And there`s, of course, the infamous, you
know, Carter telling -- Amy telling him how to, you know, decide nuclear

But everyone makes that connection in their own way, and I just think
it`s, you know, a little bit overblown right now to sit there and say that,
you know, this is a foot-in-mouth disease for -- for Mitt Romney.

SMERCONISH: Well, it went...

STEELE: He`s opened up this door...

SMERCONISH: It went...

STEELE: ... you know, for...


SMERCONISH: ... viral today. It got all the way to the president.
President Obama weighed in this afternoon. He was asked about the
controversy in an interview with the NBC affiliate in Columbus, Ohio, and
here`s what he said.


no tougher job than being a mom. I`ve watched Michelle, you know, who for
most of her career, had to juggle work and family. But there were times
where she had -- was on maternity leave, and I promise you, that`s work.

So you know, I think this was an ill-advised statement by somebody on
television. It`s not something that I subscribe to. And moreover, my
general rule is you don`t talk about the spouses of elected officials
because they`ve got a really tough job.

I haven`t met Ms. Romney, but she seems like a wonderful woman, and I
know that she`s devoted her life to her family.


SMERCONISH: Joan Walsh, among those who tweeted in opposition, or in
disagreement, perhaps I should say, with this whole controversy was David
Axelrod. And I guess it begs the question of whether Democrats have a
right to be defensive. Are they handling this correctly from a political
standpoint? Do you like what the president said? Should Axelrod have sent
out the tweet that he did?

WALSH: I don`t think Axelrod needed to do that. I love what the
president said. He put it very well. But Hilary Rosen herself has said
she didn`t put it the right way. We`re being called -- we are being
dragged into a phony debate.

I mean, Mitt Romney -- I`ve got to give him credit, he`s carrying the
day. He had a ridiculous "I know you are but what am I" strategy about the
war on women. He pretended that President Obama is the one with the war on
women, when that is patently ridiculous. And unfortunately, Hilary Rosen`s
comments got us all talking about something else.

But the very real issue is that life is tougher for women who have to
work, that being able to stay home with your children right now is an
issue, it`s a choice for the wealthy only.

And we need to be discussing the issues of poor women, of working
class women, of middle class women. And getting our panties in a twist
over the issues of very wealthy women, when the woman in question, Hilary
Rosen, has apologized -- this is a bad day that we could be spending this
day on many more important issues.

SMERCONISH: Michael -- Michael, may I ask you to hold your thought?
Because I want to...


SMERCONISH: I`m going to throw something else into the mix.


SMERCONISH: There have been a whole host of female-oriented issues
that have been raised in the last 24 hours. By way of example, yesterday
on a conference call with reporters, a Romney campaign adviser didn`t help
matters for his boss when he couldn`t answer the question of whether the
governor supports the Lilly Ledbetter Fair Pay Act. Later, the campaign
said Romney did, indeed, support it, but not before the Obama camp could
jump on the gaffe, because within hours, they`d released this Web video.

Take a look and see what you think.


UNIDENTIFIED FEMALE: Our next question will come from Sam Stein with
HuffingtonPost. Please go ahead.

SAM STEIN, HUFFINGTONPOST: Yes, does Governor Romney support the
Ledbetter Act?

UNIDENTIFIED MALE: Sam, we`ll get back to you on that.

LILLY LEDBETTER, EQUAL PAY ADVOCATE: President Obama understands this
inequity that women have suffered, the devastation that it has caused in
families. The president has made so many strides in the last three years
to upgrade women`s treatment in their jobs and their livelihood.


SMERCONISH: Michael, there was not a little Rose Mary Woods action
going on there.

STEELE: Thank you!

SMERCONISH: There was a six-second delay of some kind. You know that
this has become a kerfuffle. What`s your assessment of this?

STEELE: It`s dumb! It is dumb! I appreciate the commercial. It`s
great. You got to raise the money, so you put the commercial out. But
it`s not the 18-minute gap from Watergate, for goodness sakes. It`s six

Clearly, the staff, you know, dropped the ball there in the sense that
they didn`t give an immediate response. But Romney himself had already
been on the record on this issue, so I don`t understand what -- what --
what the confusion was. And again...

WALSH: And I don`t understand why his staff...


STEELE: ... blowing it out of proportion, you know, on the other
issue. I think you`re blowing it out of proportion the way way on this
one. It`s just crazy.

SMERCONISH: Joan, on Lilly Ledbetter, your thoughts are what?

WALSH: I think it`s a legitimate issue and I think it`s very pathetic
that a Romney staffer couldn`t answer the question. I mean, it`s relevant
now, Michael, because Scott Walker just signed into law a bill weakening
equal pay protections for women. And we have Wisconsin Republicans talking
about how women don`t need that protection.

So it`s very important that we get the Romney campaign on the record.
I guess we`ve done it now. I`m very happy about that. But that is a real
issue. What Hilary Rosen said is not a real issue.

SMERCONISH: Michael Steele...

WALSH: She doesn`t work for the campaign.


STEELE: ... for heaven`s sake!

SMERCONISH: Michael, whether we buy into the legitimacy of these
different controversies, the fact seems to remain that there`s a 19 gap...


SMERCONISH: ... between the candidates among women. How, if you were
advising Mitt Romney, would you be telling him to bridge that gap?

STEELE: Well, I think probably, one, ignore -- ignore the silly
noise, which, you know, the left wants to sort of drive and make that 19-
point gap a 38-point gap, and just come out very strongly and talk to women
and all Americans about your plans for the future and how women are very
much a part of that, I mean, because you have a lot of households -- to
Joan`s point -- where working women are doing it all. They`re going to
work. They`re going to night school. They`re raising kids. And you`ve
got to have a message that helps that women understands that her situation
can be and will be better under your leadership.

But to -- one last point that Joan made. You know, this isn`t about
just rich women. There are a lot of middle class women out there who stay
at home with their kids, too. They teach their kids. they raise their
kids. So it`s not just the wealthy. And that`s part of that class warfare
conversation that I think just distracts and distorts the overall effort to

WALSH: Michael...

STEELE: ... what we need to do to help all people...

SMERCONISH: Joan, just...

STEELE: ... not just one group.

SMERCONISH: ... take 20 seconds, and you have the final thought. Go

WALSH: The proportion of women who can afford to stay at home is
going down. One out of five women who are in the workforce right now
actually would like to be home with their kids. It`s an economic issue.

And also, Governor Romney supports the Ryan budget, which is going to
cut funding for poor women, pregnant poor women and their children, their
nutrition funding, food stamps for poor women and children. So there are
lots of policy issues we can debate. This is not one of them.

SMERCONISH: Thank you, Michael Steele and Joan Walsh for a great
conversation. We appreciate it.

WALSH: Thank you, Michael.

STEELE: See you later, Joan.

SMERCONISH: Coming up: Here`s something Republicans, Democrats can
agree on. Both want Mitt Romney to own the conservative record that he ran
on during the primaries, and neither side wants to pivot back to the
middle. That`s ahead.



SMERCONISH: New poll numbers in the presidential race. Let`s check
the HARDBALL "Scoreboard."

Take a look at this. In New Jersey, a new Quinnipiac poll shows
President Obama leading Mitt Romney by 9 points, 49 to 40. In 2008, Obama
won the Garden state by 15 points. And if Romney puts Chris Christie on
the ticket, this could be a contest. Yesterday, Quinnipiac found Governor
Christie`s approval in New Jersey at a record high.

We`ll be right back.


SMERCONISH: Welcome back to HARDBALL. Now that Mitt Romney has
effectively won the Republican nomination, he hopes to follow a rich
American tradition, head back to the political center. But an unusual
alliance of Republicans and Democrats are saying, No way.

Conservatives he courted in the primary say, Forget the Etch-a-Sketch.
They plan to hold Romney to his new right-wing positions. Liberals
meanwhile are going to make sure that swing voters are reminded of Romney`s
"severely conservative" views. How does Mitt walk that tightrope?

Our HARDBALL "Strategists" tonight, Democrat Steve McMahon and
Republican Chip Saltsman.

Gentlemen, yesterday on Fox News, Mitt Romney tried to assure voters
that the party will unite behind him in the fall, and he said this.


all come together as time goes on to make sure that we see a new change in
direction in Washington. I think Senator Santorum throughout the campaign
has been speaking about issues that we care about very deeply. So we`re on
the same page on those issues.

I think you see our party, and you will see our party, more united
than it`s been in a long, long time in part because President Obama has
taken America in such a different course than we have ever gone as a nation


SMERCONISH: Chip Saltsman, do you buy into the premise that he needs
to move in order to capture independent voters and win in November?

CHIP SALTSMAN, REPUBLICAN STRATEGIST: I think he needs to be true to
himself. Look, this is a guy that comes from the private sector. He talks
about jobs all the time, economy. That`s where his comfort zone is.

He won the primary. It was tough. It was long. A lot more social
issues were discussed in the primary. I think how we win as Republicans,
we stay true to our Republican principles, our conservative values. But
this election is going to be won on jobs and the economy, and I think Mitt
Romney is going to be very comfortable in there in the fall discussing
those issues.

SMERCONISH: But you`ve seen the numbers that suggest that he lags
behind the president among independent voters. So you`re saying there`s no
give there, he`s got to stand that ground. Frankly, just as I said in the
course of the lead-in, that those on the right within the Republican Party
are insisting that he maintain his position on which he ran in the primary.

SALTSMAN: Well, to thine own self be true, and that`s what Mitt
Romney`s got to make sure he does, is be true to the conservative
principles of the Republican Party, but talk about the things, why he`s in
this race.

It is about jobs. It`s about the economy. It`s about gas prices.
And lay out a clear vision for this country. If he does that, he wins in
November. And he`s got one thing exactly right. The policies of Barack
Obama have done wonderful things to unite this party.

And that`s what`s going to happen as Rick Santorum`s exiting this
race. The party is coming together. You`ve seen that in the last couple
of weeks, and you`ve especially seen it the last couple of days.

SMERCONISH: Would you, Steve, agree with me that -- that the
Democrats are hoping that they follow Chip`s advice, meaning the Romney
campaign, that they`d love nothing than there be no give from his vantage

true" sounds pretty compelling. But the question, I guess, a lot of
Democrats and a lot of voters have is, Which self are we talking about

Are we talking about the Mitt Romney who was the governor of
Massachusetts, who I think he would like to morph into again because it was
a more centrist model, or the Mitt Romney that ran in the primaries and
that embraced do many of those positions that Rick Santorum took and who`s
now embraced the Ryan budget, which would, of course, as we know, undo
Medicare as we know it.

And he`s embraced many of the policies that folks are calling a war on
women. So if he wants to own those things, I think Democrats would love

If he wants to flip-flop again, I think Democrats will talk about
that. And if he wants to run as the wealthy businessman who loved firing
people to create jobs, and loved carving out companies and leaving debt
behind, then we will talk about that as well. He doesn`t have a record to
win on.

SMERCONISH: How would you, as a strategist -- how would you, as a
strategist, attempt to keep him locked in as the Romney of the 2012 primary
season, as compared to the Romney who was the governor of Massachusetts and
who, I maintain, would have greater appeal to independent voters?

MCMAHON: Well, I think you saw yesterday the Obama campaign put out a
clip that basically said there`s not going to be an Etch A Sketch moment in
this campaign. We`re going to hold him to his word.

And they took Mitt Romney in his own words saying the very things that
he`s going to be trying to run away from in the general election.

MCMAHON: This might be what you`re referring to, the Democrats having
some fun with Romney`s positions during the primary season. Here`s a web


MITT ROMNEY (R), PRESIDENTIAL CANDIDATE: Corporations are people, my

I like being able to fire people who provide services to me.

I was a severely conservative Republican governor.

Do I believe the Supreme Court should turn over Roe v. Wade? Yes.

Planned Parenthood, we are going to get rid of that.

As to what to do for the housing industry specifically, don`t try and
stop the foreclosure process. Let it run its course and hit the bottom.


SMERCONISH: Chip Saltsman, you have played in such a high-level
position for Governor Huckabee. If you were in this instance whispering in
the ear of the Romney campaign, how would tell them to respond to what you
just saw?

SALTSMAN: I would take it right back to Barack Obama and talk about
the issues that matter.

Look, I know that we talk about Mitt Romney firing people. I think
there`s a lot of people who think there`s a lot of people in Washington
that need firing. So, if he`s got some experience in that, let`s put it to

If you want to talk about the Ryan budget, let`s talk about the fact
that President Obama and the Senate Democrats have not had a budget in
three years. They have spent more money in the last three years than this
country has spent in the last 200. I would take it right to Barack Obama
and talk about the issues that matter to this country, that we have got to
spending under control, we have got to get Washington under control, and
Mitt Romney, if I`m saying that, you`re the guy to do it.

SMERCONISH: Steve McMahon, let me ask you to switch hats. Because
you seem to think that Mitt Romney, in order to win, would have to tack
toward the middle. Is there an issue that comes to mind where he could
move to the middle, upset some conservatives, but still keep everybody in
the tent?

MCMAHON: Boy, that`s a good question.

I think moving to the middle in the era of the Tea Party where the Tea
Party dominates the Republican echo chamber, where you have a candidate
like Newt Gingrich who is staying in the race to keep him honest, where you
have Tony Perkins out there, who is saying he`s going to keep the pressure
on, it becomes very difficult for Mitt Romney to become the guy, the
centrist, the Massachusetts governor that frankly Democrats at one point
feared the guy who was the Massachusetts governor who governed from the

He`s become kind of the caricature of a right-wing Tea Party
conservative. And his business record has come to the fore and the fact
that he wasn`t firing government employees, he was creating wealth by
firing middle-class employees. The kind of manufacturing jobs that have
been leaving this country were hastened in their departure by people like
Mitt Romney and his Wall Street friends who were profiting handsomely from

That`s a conversation that will be held in the general election. He
may try to move to the middle, but it will just be another flip-flop. And,
frankly, the only thing worse than a flip-flopper is somebody who flip-
flops-flips, which is what I think we`re about to see from Mitt Romney.

Either way, it`s a win for President Obama and the Obama
administration campaign. This guy is what they would call in "Top Gun" a
target-rich environment.

SMERCONISH: Chip, you know Tony Perkins, of course, the head of the
conservative group Family Research Council. He likened voting for Romney
over Obama today in "The New York Times" as -- quote -- "eating your


SMERCONISH: He was also skeptical of Romney in an interview yesterday
MSNBC`s "Daily Rundown." Take a peek.


record that does not necessarily match his rhetoric that he campaigned on
four years ago and has not campaigned on as much this time, although he`s
checked the boxes.

So he clearly has a lot of work to do to shore up support among a very
important segment of the Republican voting base. So they`re going to vote
for Mitt Romney. There`s not a question there. The question is the level
of enthusiasm and intensity. It`s turnout.


SMERCONISH: I guess, Chip, my question is, you hear him make
reference to having checked the boxes. He needs to keep these folks
enthused and in the tent, but he`s got to grow that tent to win in
November, does he not?

SALTSMAN: Well, I think you got to your base excited. Look, both
parties have to do that. They have to get their base excited and also win
the independents.

But, look, one thing I know for sure growing up in the South like
Tennessee, eating your vegetables is good for you. It grows you up and big
strong. So, we think, eating your vegetables, we think it`s a good thing.


SALTSMAN: But I think as Mitt Romney kinds of put this, you have to
have something, you have got to keep the base energized and excited. I
think you can do that perhaps with a V.P. pick. I think there are some
good names out there to do that.

But also this election is going to be about jobs. This election is
going to be about the economy.

SMERCONISH: Understood.


SALTSMAN: ... going to be about gas prices.

SMERCONISH: Thank you.

SALTSMAN: And I think Mitt Romney is very comfortable there.

SMERCONISH: Thank you, Chip Saltsman. Thank you, Steve McMahon. We
appreciate it.

MCMAHON: Thank you.

SMERCONISH: Up next, what does first lady Michelle Obama have to say
about the fact that her popularity is higher than her husband`s? Stick
around for the "Sideshow."

You`re watching HARDBALL.


SMERCONISH: Welcome back to HARDBALL. And now for the "Sideshow."

The first lady, Michelle Obama, hit the late-night scene with an
appearance on "The Colbert Show" last night. She was there to promote her
initiatives to support military families, but also hit on her role in the
general election.


the president the fact that you`re more popular than he is?



COLBERT: Do you ever say, like, hey, watch it, or I might not
campaign for you?


MICHELLE OBAMA, FIRST LADY: I might try that when I get home.


COLBERT: Have you endorsed him yet? Are you prepared to do that?

M. OBAMA: I am prepared.


M. OBAMA: I am endorsing my husband, Barack Obama.


M. OBAMA: I think he will be a phenomenal president. He has done a
phenomenal job. He`s my man.



SMERCONISH: A new Marist poll out today shows Mrs. Obama with 65
percent favorability. She`s a winner for team Obama.

And Foster Friess, a key donor to the pro-Santorum super PAC, says he
is now willing to help Mitt Romney. He`s tough to forget.


my gosh, it`s such -- inexpensive. Back in my days, they used Bayer
aspirin for contraceptives. The gals put it between their knees and it
wasn`t that costly.


SMERCONISH: That`s the one. Once again, Foster Friess saying
something that must have the Romney people wishing that he would keep
wallet open and his mouth shut.


FRIESS: This is a decent, decent man.


FRIESS: I think he has had reversals in his positions, but now it
will be very hard for him not to stick with those positions.

He has to realize that the American people are counting on him now to
do what he says. And I think he will.

There are a lot of things that haven`t been hammered at because Rick
and Mitt have been kind of going at each other. Now that they have trained
their barrels on President Obama, I`m afraid his -- I hope his
teleprompters are bulletproof.


SMERCONISH: Friess quickly admitted that he shouldn`t have said that.
No, he shouldn`t have.

Up next, Trayvon Martin`s shooter, George Zimmerman, made his first
appearance in court today. He faces a charge of second degree murder.

And we will break down the case with Alan Dershowitz. You`re watching


"Market Wrap."

And it was a good day for stocks on this Thursday, the Dow gaining 181
points, the S&P 500 up 19, and the Nasdaq up 39. The surge compounded
after hours as Google announced better-than-expected quarterly earnings.
The company is also announcing a stock split. Investors did look past some
lukewarm economic data today, including an increase in weekly jobless
claims. A decline was expected.

And homebuyers, listen up. Freddie Mac says 30-year mortgages dropped
to 3.88 percent nationwide this week, still near an all-time low.

And that is it from CNBC -- now back to HARDBALL.


Today, George Zimmerman made his first court appearance since being
charged with the fatal shooting of Trayvon Martin. The appearance lasted
less than five minutes, but it was a major marker in the case of the
shooting death of Trayvon Martin, and an arraignment was set for May 29.

Joining me now from Sanford, Florida, is Kerry Sanders.

Kerry, the affidavit of probable cause was released this afternoon.
What surprises do you see in it?

KERRY SANDERS, NBC CORRESPONDENT: Well, you know, the affidavit of
probable cause explains why the prosecution decided that there was, in
their mind, a second degree murder here.

There were two investigators who did this affidavit, and they are from
the state attorney`s office, and they were working for the special
prosecutor. I think the first thing that really grabbed me when I was
looking at it was there`s been this whole question about who was following
who and why they were doing it.

And the first thing it says in here, that Trayvon was profiled by
George Zimmerman. So that suggests, using that word profile that he was
being followed because he was African-American. Then, on another page in
the affidavit, it goes on to talk about Zimmerman confronted Martin and a
struggle ensued.

This is critical language when you consider that there is Florida
stand your ground law. And standing your ground law is applicable if you
are not the one who is initiating the contact. But here they`re suggesting
Zimmerman confronted Martin.

So that appears to be their basis in the affidavit of why they believe
the stand your ground here does not apply.

SMERCONISH: I thought it was...

SANDERS: There`s one other part of the affidavit.

SMERCONISH: Yes, go ahead.

SANDERS: Go ahead.

SMERCONISH: I was going to say, I thought it was a little thin for
what it doesn`t say. I`m anxious to ask Professor Dershowitz about that in
just a moment.

But make your second point.

SANDERS: Well, you know, you`re correct.

And in that hearing today, it was kind of a surprise, because, as you
know, Florida has a very -- very liberal open record laws, and we expected
to get a lot more than this. But the defense attorney, Mark O`Mara,
requested that all of the public records be sealed, and Angela Corey, the
special prosecutor, who routinely would not be in something like a first
appearance, was in the courtroom, and she agreed.

And so now it will take a challenge or the judge who has been assigned
to this to determine whether, indeed, Florida`s public records laws apply
to all cases, those that are high-profile and those that are not, or
whether they`re going to create sort of a new interpretation of cases that
are high-profile.

The other thing in here that I think is interesting -- and I have to
kind of edit the words, but there`s those 911 calls that we heard, and
including the call that George Zimmerman made. And there were some
mutterings in there that it was sort of hard for everybody to analyze and
determine what they mean, what they said, what was said.

In this affidavit, this is what the investigators say, and these are
quotes, that Zimmerman stated "these `expletive deleted,` they always get
away." And then it goes on to say "that these `expletive deleted` punks."

So I think that`s interesting because nobody really knew exactly what
was said, and now, at least from the state`s point of view, and then
ultimately there is that...

SMERCONISH: I`m still not sure.

SANDERS: ... there is that question of that scream, Chris (sic).


SANDERS: We heard that scream. And there were both sides arguing
that was Trayvon Martin screaming for help; no, that was George Zimmerman.

They say here that they played that piece of audiotape to Sybrina
Fulton, which is Trayvon`s mother, and Trayvon`s mother -- or Trayvon --
Trayvon Martin`s mother has reviewed the 911 calls and identified the voice
crying for help as Trayvon Martin`s voice.

And so there you see in this -- I agree with you -- thin document here
of how they reached their conclusion to bring second degree murder charges.

SMERCONISH: Well, let me -- and thank you, Kerry Sanders. We
appreciate your time and your report very much.

Joining me now, Harvard law professor Alan Dershowitz.

Professor, I have really looked forward to this conversation.

You have seen the affidavit of probable cause. What do you make of

AND GAZA": It won`t suffice.

Most affidavits of probable cause are very thin. This is so thin that
it won`t make it past the judge on a second degree murder charge. There is
simply nothing in there that would justify second degree murder. The
elements of the crime aren`t established. Basically, what`s in the
affidavit is what`s in the public domain, with the exception of the few
little things that were put forward by your previous commentator.

But the fact that the mother identified the voice as that of her son,
of course, we all knew that that was going to happen. There is nothing in
there, of course, either about the stains on the back of Zimmerman`s shirt,
the blood on the back of his head, the bloody nose, all of that.

It`s not only thin. It`s irresponsible. I think that what you have
here is an elected public official who made a campaign speech last night
for reelection when she gave her presentation, and overcharged, way
overcharged. This case will not -- if the evidence is no stronger than
what appears in the probable cause affidavit, this case will result in an

SMERCONISH: Professor, you and I have the benefit of having read the
affidavit. Allow me, please, just to read one short paragraph, so that
folks know how limited it is in a factual discussion of the critical

"Zimmerman confronted Martin and a struggle ensued. Witnesses heard
people arguing and what sounded like a struggle. During this time period,
witnesses heard numerous calls for help, and some of these were recorded in
911 calls to police. Trayvon Martin`s mother has reviewed the 911 calls,
identified the voice crying for help as Trayvon Martin`s" -- nothing about
that critical, you know, who struck the first blow and what precipitated
that action that I was looking forward to seeing in the affidavit of
probable cause.

DERSHOWITZ: But it`s worse than that. It`s irresponsible and
unethical, and not including the material that favors the defendant, unless
it`s not true. But if it`s true, as we now have learned from other
information, that the grass stains are in back of Zimmerman`s shirt, that
there were bruises on his head, you must put that in an affidavit. The
affidavit has to tell the truth, the whole truth, and nothing but the

SMERCONISH: Let me ask you this because you`ve written something
very insightful about a nightmare scenario that a prosecutor could face
where you distinguish between the differing levels of proof, probable
cause, as compared to beyond a reasonable doubt. In lay terms, lay that
out that for us now.

DERSHOWITZ: Well, it`s very easy to get an indictment. I think a
chief judge of New York Court of Appeals once said that a prosecutor could
persuade a grand jury to indict a ham sandwich. It`s even easier to get
something like this because all the prosecutor has to do is sign her name
to it.

But probable cause is a very minimal standard. It just means if
everything you say turns out to be true, have the elements of the crime
been satisfied? Proof beyond a reasonable doubt means that a jury has to
conclude that there is no reasonable doubt that it happened. No reasonable
doubt that it happened.

This affidavit doesn`t even make it to probable cause. Everything in
the affidavit is completely consistent with a defense of self-defense.
Everything. Even if he was the provocateur, you still have traditional
defense under Florida law.

If, in fact, Zimmerman provoked it but then Martin got on top and was
banging his head against the ground, he still has a traditional right of

So, there is nothing in this affidavit -- and I`ve read it quite
carefully -- that suggests the crime. It suggests the possibility of a
crime, but a good judge will throw this out.

And I think probably she`d be satisfied with it. She`s won her
campaign. She`s overcharged, second-degree murder. She`s the hero.

SMERCONISH: Well, Professor, will the prosecution get a mulligan on
this? Will they have the opportunity to do it over and put more
information into it?

DERSHOWITZ: Sure, but the question is do they have more information?
If they have more information, why don`t they put into it? And why are
both sides trying to seal the record here? I suspect that already we`re
seeing negotiations --

SMERCONISH: For a plea?

DERSHOWITZ: -- possibly toward a plea bargain. The new lawyer
implied that yesterday when he talked about negotiations and when he
wouldn`t say anything critical about the prosecutor.

But, you know, it`s unethical to overcharge in order to get a plea.
It`s unethical to charge second-degree murder in order to get a plea of

And so, I think this prosecutor had a lot of answering to do. She`ll
win a lot of popularity contests. She`ll probably get points with the

But the tragedy in America is we`re the only democracy in the world
where we elect prosecutors and elect judges, and that`s not conducive to
doing justice in high profile cases where people are rooting for outcomes
and nobody seems to be concerned about the truth -- except, by the way,
Martin`s parents, who seem to be handling this very well. I think they are
interested in the truth and I have nothing but praise for the way they`ve
handled this case.

SMERCONISH: Thank you -- thank you for your insight, as always, Alan

DERSHOWITZ: Thank you.

SMERCONISH: Up next, Republican Congressman Allen West of Florida
says there`s about 80 Democrats on Capitol Hill who are members of the
communist party. What is this, 1952? Somewhere Joe McCarthy is smiling.

By the way, you can follow me on Twitter if you can spell Smerconish.



SMERCONISH: Former presidential candidate John Edwards who was in
court today as jury selection got under way in his criminal trial. Edwards
faces six criminal counts related to nearly a million dollars in secret
payments made by two campaign donors to allegedly cover up an extramarital
affair. If convicted, Edwards could face 30 years in prison and $1.5
million in fines. Open arguments are expected to begin on April 22nd.

We`ll be right back.


SMERCONISH: We`re back.

Republican Congressman Allen West of Florida is threatening to take
its party back to an era it would rather forget -- generally, Joe
McCarthy`s infamous speech in Wheeling, West Virginia, back in 1950. West
told a town hall meeting Tuesday that are around were 80 Democrats in
Congress who are currently members of the communist party. The Democrats,
commies, he says.

Is that really the message that the GOP wants to be sending in 2012?

Howard Fineman is editorial director for "The Huffington Post" Media
Group and an MSNBC political analyst. Chris Frates is the congressional
reporter for "The National Journal."

Gentlemen, here`s Congressman West inside a town hall meeting on
Tuesday. He`s fielding a question by an attendee.


AUDIENCE MEMBER: What percentage of the American legislature do you
think are card-carrying Marxists or international socialists?

REP. ALLEN WEST (R), FLORIDA: No, it`s a good question.

I believe there`s about 78 to 81 members of the Democrat Party that
are members of the communist party. They actually don`t hide, it`s called
the Congressional Progressive Caucus.


SMERCONISH: Afterwards, the congressman`s staff didn`t back away
from his comment. They doubled down, saying, quote, "The congressman was
referring to the 76 members of the Congressional Progressive Caucus. The
communist party has publicly referred to the Progressive Caucus as its

Howard, a rather extreme example of the loose language that has now
become a part of our political lexicon.

talking to one of the top officials in the Democratic Party who said, where
is the outrage on the part of responsible Republicans? Where are they
saying let`s denounce this guy?

There`s a lot of talk on the air about loose language on all sides of
politics, about stay-at-home moms, about this and that, you know, news of
the day. Where -- Congress isn`t in session, sure, but where`s John
Boehner, where are the leaders of the Republican Party saying this is

They`re not saying it, and in the meantime, it helps the Democrats to
the extent that it makes the Republican Party look even more weirdly Tea
Party-ish than they already did.

SMERCONISH: And, Chris, you`ve reported about Allen West. In fact,
you have gone through on "National Journal" some of the other faux pas,
verbal faux pas, for which he`s been responsible, it`s a growing list.

CHRIS FRATES, THE NATIONAL JOURNAL: Absolutely, Mike. I mean, when
you look at Allen West, he`s a guy who people are talking about in the
Republican side as vice president. He`s got nods from people like Nikki
Haley, Sarah Palin, Newt Gingrich, Herman Cain, people who are saying he
could be a guy who can really get the Tea Party excited about the Romney

But when you take a look at the kinds of things he said, I mean, for
instance, he said being gay is like picking an ice cream flavor. He said
that the Democratic Party reminds him of the Goebbels Nazi propaganda
machine. He has said that Keith Ellison, the first Muslim elected to
Congress, is -- represents the antithesis of what our country was founded
on. And, finally, you know, he called the DNC Chairwoman Debbie Wasserman
Schultz "vile".

I mean, these are things that if you`re a vice presidential candidate
and you have these kinds of loose lips, you`re going to drive your campaign
off message and it`s going to hurt the campaign. He`s showing that he`s
not quite ready for the national spotlight, and it`s easy for Democrats to
lampoon this kind of behavior and say you can`t take him seriously. And if
Romney is running on anything, is that he`s the serious adult in the race
who can fix our nation`s problems.

SMERCONISH: Well, Howard Fineman, just to show everybody how far off
the rails this is, even the Communist Party USA is backing away from what
West, saying, quote, "It`s an absurd way to cast a shadow over his
colleagues. It`s a kind of sad ploy. It`s just guilt by association taken
to an extreme."

FINEMAN: Yes, and when the communist party is attacking you for
being wild and crazy, you know that you`re probably off in the corner

I don`t think anybody seriously in the Republican Party is looking at
Allen West as a vice presidential candidate. And I would say if Sarah
Palin and Herman Cain and even Newt Gingrich are some of the people who are
talking about him, that just proves my point.

West does nothing but play into the hands of those who would like to
describe the Republican Party as beholden and being driven off the end of
the cliff by the Tea Party. Now, a couple of years ago, everybody was
saying, hey, the Tea Party is going to revolutionize the Republican Party
and the Tea Party activists did have a hand in Republican victories in
2010, but I think the Tea Party has really lost a lot of its luster in the
electorate, and now, the Democrats can try to tie comments by people like
West and characters like West to the Republican Party and try to make him
the emblem of the party, dangerous for Republicans.

SMERCONISH: Well, Christ Frates, I have just less than a minute left
with us, but the point is here I think that Howard is making is and we
discussed this earlier in the program, it`s a time when the GOP needs to
command some independent support, a statement like this is just the wrong
brand at the wrong time, that`s the significance, right?

FRATES: Well, I think Howard is right. This is not a candidate when
he first rain for Congress, the GOP establishment distanced themselves from
Allen West. When he looked like he might be able to take a seat in 2010,
they through their support behind him late, as somebody who maybe can win a
district, so let`s get behind him and win another seat.

But I think you`re both right when you say this is not the kind of
character that the establishment GOP wants to put on the ticket at a time
when they need independent votes and they need to be able to appeal to
people who --


SMERCONISH: On that, we all agree.

Chris Frates and Howard Fineman, thanks very much. We appreciate.

FINEMAN: Thanks, Michael.

FRATES: Thank you.

SMERCONISH: When we return, allow me to finish with a prediction
about the Republican nominee for 2016, provided President Obama beats Mitt
Romney this fall.

You`re watching HARDBALL.


SMERCONISH: And "Let Me Finish" tonight with this:

With Mitt Romney now in control of the 2012 GOP nomination, I`m
already looking into my 2016 crystal ball. I see the likes of Rick
Santorum, Marco Rubio, Paul Ryan, John Thune, maybe Sarah Palin, they`re
the usual suspects for 2016 assuming Mitt Romney loses to Barack Obama,
which current polls suggest will be the case.

I don`t believe the race is over, but if Romney loses, I can already
hear Santorum standing in an Iowa cornfield and telling people, "I told you
so." Just last month, he told Wisconsin voters that Romney was the worst
Republican in the country to put against Barack Obama. All he`ll need do
is change the tense of many of speeches he just delivered and use them

Then Santorum will drill down on a parallel between 2012 and 1976
when a moderate Gerald Ford won the nomination over a more conservative
Ronald Reagan but lost the general election. And Santorum will say he`s
the proper heir to the Reagan throne. Of course, an alternative view will
be that the GOP went off the rails with religious and social litmus tests
in the 2012 primary season and it`s conservative candidates cannibalized
moderates, and then split the right wing vote between the likes of
Santorum, Gingrich, Bachmann and Cain, and they allowed the most liberal of
the field to survive the nomination process.

Make no mistake: Romney didn`t win it, he survived it. He was the
tortoise in the race that had no hares. But history could repeat itself,
because if present trends continue, the Republican Party would be even more
conservative in 2016. The party has done nothing to broaden its tent, and
registration figures document the resulting growth of independents.

There will be Santorum fresh from a lucrative tour on the speaker`s
circuit and a stint on FOX News running again, facing the likes of Ryan and
Rubio, et cetera. They`ll divide the evangelical vote and they`ll create
an opening for anyone who can cobble together whatever GOP independent
thinkers never got the memo and stayed in the party.

So, who benefit? Anyone than with a less than doctrinaire of the
world. Trouble is, there are few Republicans with national stature who are
not ideologues. Jeb Bush, maybe. But more likely, Chris Christie. He
could be on the heels of an unsuccessful bid as Mitt Romney`s V.P.

Last September, "New York" magazine offered five things conservative
voters would hate about Chris Christie. The list included immigration
reform, gun control ands the view that, quote, "climate change is real." A
list like that will make him the anomaly a crowded conservative field which
is a strategic advantage if the ideologues again split the primary vote.

The 2016 nominee, Chris Christie. Call me a soothsayer, or remind to
meet some crow.

That`s HARDBALL for now. Thanks for being with us.

"POLITICS NATION" with Al Sharpton starts right now.


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